Preparing a Casenote

1. Preparing a Casenote Professor Tobi Tabor Summer 2012

2. Legal Scholarship is Critical Writing • “[T]he purest form of critical writing is scholarly writing—the sharing within the legal community of new ideas about the law.” 1 • “[L]egalscholarship is characteristically normative (informed by a social goal) and prescriptive (recommending or disapproving a means to that goal).”2 • 1 Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 2 (4th ed. 2011). 2 Id. at 4.

3. Good Scholarly Writing • Factually Correct • Logical Analysis • well and sufficiently reasoned and divided into mutually exclusive, yet related sections • Clear and readable • Somewhat formal style • Not pompous or colloquial

4. Steps Involved¹Tasks Required ² • Inspiration • Research-preliminary • Research-close to complete • Drafting • More research-fill gaps • Revising • Polishing ¹Fajans & Falk at 21. • Outline/rough draft • Complete draft • Good draft • Final product  Mary Barnard Ray & Barbara J. Cox, Beyond the Basics 406-20 (2d ed. 2003). You may not write all these stages, but you will need to address all tasks.

5. Steps&Tasks Integrated • Inspiration • Research-preliminary • Research-close to complete • Drafting Outline/Rough Draft Complete Draft • More Research • Revising Good Draft • Polishing Final Product

6. Step 1-Your inspiration • For Competition you will be assigned a recent opinion to analyze • For this casenote previously unresolved or currently evolving areas of law provide most potential • You will agree or disagree with all or part of what the Court did • Something worth writing about—new issue, rule no longer practical, decision makes new law on old issue • Hone it down to manageable size and scope

7. Inspiration: Developing a Thesis ¹; Finding a Claim ² • Original • Says something not said before • Comprehensive • “provides sufficient background [so] any law-school-educated reader [can] understand . . . and evaluate the writer’s thesis.” • “takes the reader from the known (background) to the unknown (the writer’s analysis).”³ • Claim is your solution to a problem you have identified. Or Dispute you have identified and rationale for why it was rightly/wrongly resolved. ª¹ • Topic must be narrowed to manageable proportions to formulate thesis.ª² • 1 Fajans & Falk, at 14. • 2 Eugene Volokh, Academic Legal Writing 10 (4th ed. 2010). • 3 Fajans & Falk,at 14. • ª¹Volokh, supra note 2. • ª² Id.

8. Your Solution: Combine the Descriptive & Prescriptive ¹ • In Descriptive part of claim—the world as it was/is—the most plausible explanation of facts you have discovered² • Historical question • A claim about a law’s effects • A statement about how courts are interpreting the law • In Prescriptive part of claim—what should be done—the best solution you can suggest • How a law should be interpreted • What new statute should be enacted • How a statute or common-law rule should be changed • 1Volokh, at 10. • 2 Id. at 21.

9. Your Claim You should be able to state your claim in In one sentence.¹ “Statute X does not provide adequate protection to those it was enacted to serve because ….” “This [ruling] is likely to result in the following consequences . . . , and therefore should be modified to provide . . . .” 1 Volokh at 9.

10. Characteristics of Claim¹ “Good Legal Scholarship should (1) make a claim that is (2) novel, (3) nonobvious, (4) useful, (5) sound, and (6) seen by the reader to be novel, nonobvious, useful, and sound.” ¹Volokh at 21.

11. Characteristics¹ • Novel: • Add something to the state of expert knowledge about the field. • Nuance: • 1. “[W]hat special factors—for instance, government interests or individual rights —are present in some situations covered by your claim but not in others. Could you modify your claim to consider these factors?” • 2. Do your arguments in support of your claim work well in some cases but badly in others? Can you limit your claim accordingly? • 3. Simple “yes” and “no” answers in legal writing often attract more writing. Can you come up with a plausible “yes” in some cases, “no” in others? • Nonobvious: • Claims that “just apply settled law or well-established arguments to slightly new fact patterns [] tend to look obvious.” • Add a twist—more nuance: e.g., if leading precedent in the field doesn’t squarely support your claim, acknowledge and fill in support with other precedent and policy arguments ¹The concepts and descriptions of novelty, nonobviousness, utility, & soundness on this and the following slides are excerpted from Volokh at 21-35.

12. Useful • Some readers should find idea professionally valuable • Questions left open or created by decision: how should they be resolved? • Apply to other jurisdictions (e.g., conduct violates 4th amendment; also violate state constitutions?) • Include prescriptive implications • Avoid language, examples, & jargon that will unnecessarily alienate readers, “anti-choice,” “gun lobby,” “fanatic.” “[I]n general, don’t weaken your core claim by picking unnecessary fights.”1 1 Volokh at 28.

13. Sound • “Avoid • excessive mushiness” • reliance on legal abstractions” • e.g., “single-sex educational programs should be legal if they have been shown in controlled studies to be more effective than co-ed programs” probably more defensible than “single-sex educational programs should be legal if they are reasonable.”

14. Write-on Competition • You are given specific case • Read all separate opinions • As you read, formulate reaction to court’s reasoning (majority, concurrence, dissent), and from there, formulate your claim/original thesis. • Check periodicals to see if your claim has already been addressed. • You should read all the cases cited by the court in starting your research, and you may need to read them before you formulate your claim.

15. Where would you start? • Narrow thesis/claim? 1st: Interdisciplinary/law only ¹ Then: Macro-micro Comparisons Causation Questions • Research sources? • Who has authority • Where find sources • Lines of analysis? • ¹ These techniques are discussed in Fajans & Falk at 20-22.

16. How to Narrow Topic¹: Bullying and Children/Adolescents • Decide whether primarily legal or primarily interdisciplinary • What are the implications of the decision for some or all ofchildren, parents, schools, area service providers? • What federal and state laws and regulations govern rights and protection of students in schools? What entities are responsible for enforcing? • If children are consistently bullied, how effectively can they integrate into further education and then into the workforce? • Up and down ladder of abstraction: macro focus (greatest level of generality) to micro focus (greatest detail & specificity) • In what venues does court address bullying? What effect on venues not specifically included? What remedies? • What is frequency and type of public school vs. private school bullying by bullies’ ages, school grade, gender? • What gender and age group(s) are most susceptible to bullying, what assistance is available? ¹Fajans & Falk at 20-22.

17. Bullying • Make comparisons • How does decision affect states’ laws? School districts’ rules? • Is bullying more prevalent in the United States than in foreign jurisdictions (those consistently subject to violence vs. those generally peaceful), in certain states than in others? • Are bullies more likely to succeed in the workforce (have to define “succeed”) than their victims, their acolytes, the bystanders? • Determine Causation • How will the court’s decision impact state and school district budgets? • What is the long-term impact of bullying on the bully, the victim? • Are bullies, victims, bullies’ acolytes, bystanders at higher risk than the remaining school population to physically harm themselves? • Ask series of questions • What acts constitute bullying? • Who does the bullying: gender, age, etc.? • What obligations do schools have to prevent or penalize bullying, help victims? • Differences in amount of bullying in public and private schools, middle and high schools? • What influence does media have? • What role can pediatricians, psychologists play to prevent bullying, help victims?

18. Step 2-Preliminary Research • Check periodicals to see if your original thesis has already been addressed. • List major points—roadmap for research • Develop search terms • No specific starting point • Secondary sources • Known case or statute • Annotated statutes • Shepardize—headnote numbers • Key Cite—Key numbers • legislative history

19. Research Plan • Has someone else looked into some aspects? • Build checks into your research so you don’t stop too soon • Logical and orderly documentation of what you have done • What courts, governments, branches of government have authority to speak on the issues? • Different places to find that authority?

20. Read critically while researching • Take good notes so you don’t lose your original reactions to material. • Don’t read just to summarize. • Ask questions- • implications & consequences of writer’s position? • Writer’s inferences & conclusions—adequately supported? • Purpose of the text well-stated, justifiable?¹ • Find the holes in what you’re reading, the inconsistent reasoning, conflict with precedent (will help you focus on thesis and analyze topic critically). • ¹ These and critiquing techniques found in Fajans & Falk at 28-30.

21. Step 3—Research-close to complete • What sources might you be looking for? • Statutes and regulations: U.S. & foreign • Treaties, Conventions, Protocols • Cases • Secondary sources: academic perspective, practical perspective

22. Sources: Research is a continuous process • As you write, research to fill analytical gaps, provide examples, etc. • Statutes and regulations • U.S. • States • Legislative history—comments on the floor, committee reports, hearing transcripts, session laws (findings and purpose) • Treaties, Conventions, Protocols • Cases • Academic articles • Comparisons, critiques, rationales • Policies

23. Step 4-Preparation for Writing: How Do the Materials Fit Together? • Organize your materials into issues, lines of cases and commentary, pro and con • If you have a good grasp of a thesis, start with an outline • Try a non-linear outline if you can’t decide how concepts fit together • If you’re not ready for an outline, do “freewriting”—just “dump” all the thoughts you have onto the paper—from there you can derive an outline

25. Flowers’ Paradigm: "How Writers Write” • Madman • Architect • Carpenter • Judge

26. First Complete Draft • Fill in content in organizational structure • Let creativity flow • minimize rewriting—keep the Judge at bay—this is Madman’s opportunity to have “one more idea” • Try to get most ideas down before rewriting

27. The Parts of Your paper: start writing anywhere—end with 4 parts • Scholarly papers have a basic four-part structure • Introduction • Background • Analysis • Conclusion

28. Introduction • Goal--persuade people to read further • Introduce topic & why it’s important • Describe subject of paper • Give enough background to make significance of your subject obvious • State your claim • Provide an explicit roadmap • 5-7.5% of paper

29. Background: Two parts in casenote • General background • Origin of subject • Changes during development • Reasons for changes • How things are now • Specific case description • Issue court considered • Facts as relevant to the issue • Each separate opinion • Decision • Reasoning

30. Background: Both Parts • Have to assume law-educated reader is relatively uninformed in the area • Not tedious with detail but specific as to what is necessary for topic • Be comprehensive judiciously • Synthesize precedents • No commentary, critique

31. Organization of Background: General section • Topically re issue/strand of analysis • Chronologically w/in topic • Jurisdictionally w/in topic • Courts • Branches of government

32. Analysis • The most important section • (1) original thoughts • (2) tightly, logically, and creatively reasoned • Keep reader’s interest • Build to a conclusion

33. Analysis • Your critique and commentary • Assess development of relevant case law: how law got where it is, where it should go, why, how? • Usually several strands of analysis • Background & Analysis 85-90% of paper: split 40/60 up to 50/50

34. Prove your thesis • Prove your prescriptive proposal both doctrinally and as a matter of policy. • Be concrete. • Confront contrary arguments, but focus on your own. Volokh at 35-38.

35. Organization of Analysis • Large-scale • Divide into major issues/strands of analysis—use informative headings • Subdivide--subheadings • Order logically—headings & subheadings should be logical outline • Small-scale • Introduce and conclude on each issue • Focus on your arguments • Rebut major opposing arguments

36. Conclusion • Restate thesis • Summarize major points • “[M]ay suggest related issues or ramifications, inviting the reader to further reflection.”¹ • 5-7.5% of paper ¹ Fajans & Falk at 9.

37. Step 5—More Research • As you write, research to fill analytical gaps, provide examples, etc. • Continuous process • Don’t let research prevent or interrupt writing

38. UHLC Honor Code & Plagiarism Policy • A failure to review and familiarize yourself with these guidelines and how they apply to the assignment you have before turning in even a draft of a covered paper constitutes a violation of the University of Houston Law Center Honor Code, and that is so even if the paper ends up not violating this policy. In other words, there is no acceptable excuse for preparing a paper covered by this policy without having first reviewed this policy carefully and determining how it applies to the project in which you are engaged.

39. Plagiarism • intent not required • plagiarism is still plagiarism, even when it is inadvertent product of careless research (i.e., save those pages from which you expect to quote, note pinpoint cites)

40. Plagiarism Policy • “[A] writer may not appropriate in his writing either the language or the ideas of another without giving due credit to the source of such language or ideas, except as otherwise specifically provided [in the policy].”

41. “Giving Due Credit to the Source” • “What constitutes giving credit to the source of borrowed language or ideas ‘in a way that clearly indicates the nature and extent of the source’s contribution to the student’s work’ varies . . . [,]” and the Plagiarism Policy has examples.

42. What is a paraphrase? • Putting another’s ideas and words into your own words • Get the essence of the statements and rephrase in your own words • Not just changing a few words here and there, even if you cite the source • Write paraphrase relying on your memory, without looking at the original. • Then compare for content, accuracy, and mistakenly borrowed phrases.

43. How Do I Use Quotes? • Always provide an introduction that reflects significance of quote: • Not “court held,” “commentator said” • Minimize use of quotes, particularly block quotes. • Quotes supplement text; they don’t supplant, i.e., if you take the quotes out, you still have clear, logically developed text.

44. Student Note • The text and footnote excerpts on the following slides are all quoted from the following student note: Adam K. Nalley, Note, Did Student Speech Get Thrown Out with the Banner? Reading “Bong Hits 4 Jesus” Narrowly to Uphold Important Constitutional Protections for Students, 46 Hous. L. Rev. 615 (2009).

45. Quotes: in a sentence (49 or fewer words) • Under the standard put forth by the Court, a school’s control extends over student expression in the context of any activity that, “students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."[Nally, footnote omitted]

46. Quotes: block (50 or more words), Nally FN 105.Maring, supra note 72, at 688-89. See generally Charles C. Haynes, et al., The First Amendment in Schools 59.65 (2003) (identifying and explaining the “three tests” developed by the Supreme Court from the landmark student speech cases: Tinker, Fraser, and Hazelwood). Justice Alito, while sitting on the Third Circuit Court of Appeals, provided a good summary of the types of speech these cases allow schools to prohibit: To summarize: Under Fraser, a school may categorically prohibit lewd, vulgar or profane language. Under Hazelwood, a school may regulate school sponsored speech (that is, speech that a reasonable observer would view as the school's own speech) on the basis of any legitimate pedagogical concern. Speech falling outside of these categories is subject to Tinker's general rule: it may be regulated only if it would substantially disrupt school operations or interfere with the right of others. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001).

47. Footnotes have three functions: • provide authority for assertions • attribute borrowed ideas & words to a source • Provide discursive commentary to supplement text

48. Authority Footnotes --the general rules • substantiate every proposition in text—not your own ideas and opinions • No common knowledge in legal writing • background sections need fewer and more general footnotes • see generally and see, e.g., • use appropriate signals when necessary • be sure signal choice is not misleading • do not quote work out of context • use parenthetical explanations to make clear the relevance of citations

49. Authority Footnotes, Nally Paramount and MTV films are currently producing a film about “a young man standing up for his rights” after he was suspended for flying a fourteen-foot banner the phrase “Bong Hits 4 Jesus” outside his school. [FN 1] The movie is based on the real life story of Joseph Frederick, who made national headlines when he challenged his suspension all the way to the Supreme Court. [FN 2] It is the story of a high school senior who, in an effort to show he would not “bow down in submission before an authority,” created a banner with a large piece of paper, three dollars worth of duct tape, and a peculiar phrase that would become the subject of a Supreme Court case. [footnote omitted]. FN 1Jeff Giles, Paramount, MTV Doing Bong Hits 4 Jesus, Rotten Tomatoes, Oct. 22, 2007, http://www.rottentomatoes.com/m/jesus_loves_me_lets_sing_about_doing_your_best_in_school/news/1682499/.The film’s producers compare it to the classic Mr. Smith Goes to Washington. Id. FN 2Id.; see, e.g., Linda Greenhouse, Court Hears Whether a Drug Statement is protected Free Speech for Students, N.Y. Times, Mar. 20, 2007, at A16 (describing the interactions between the attorneys and the Supreme Court Justices during oral arguments).

50. Attribution Footnotes --the general rules • footnote for borrowed language, facts or ideas • 7 consecutive words – use quotation marks • if distinctive language – use quotation marks • 50 or more words – follow block quote rules • footnote citing or quoting source “A” thatin turn quotes or cites “B” • Only one level of “quoting” or “citing” is necessary, unless second level particularly relevant. Rule 10.6.2 • reference source and significance as you introduce a quote • The Shasta concurrence criticized the majority’s construction of the phrase as veering too far afield from established law : “ . . . .”